Page images
PDF
EPUB

....

159

What Justice Black mildly refers to as the "admittedly difficult method of impeachment," amounts in the words of Senator McAdoo, spoken after participating in the trial of Judge Ritter, to a "practical certainty that in a large majority of cases misconduct will never be visited with impeachment," "a standing invitation for judges to abuse their authority . . . ."157 No student who takes the time to study the path of impeachment will quarrel with McAdoo's assessment.158 Against generally acknowledged present deficiencies of the impeachment process, Justice Douglas would pit fears of judicial visitorial powers over judges: "The power [of other judges] to keep a particular judge from sitting on a racial case, a church-and-state case. a union case may have profound consequences.' 160 To a Negro seeking civil rights, the possibility (to follow in the path of hypothesis) that a fair-minded Southern district judge may repeatedly be reversed by a racist Court of Appeals is no less serious. I would hazard that judges would find reviewing judges no less fair in judicial removal cases than they have proved in racial

cases.

Perhaps we have come to rely unduly on the professionalism which tends to school and temper judgment and to teach judges to discount personal biases. But if we can safely trust the life and property of a citizen to judicial determination, if we rely on the courts to rise above personal bias on racial issues that wrack the nation, 161 we should trust them no less when they come to determine the far less momentous issue whether a judge is unfit for office. Our trust should extend to confidence that courts will not suddenly yield to personal bias when they are called upon to decide whether a judge has been guilty of misbehavior, or whether by reason of insanity, senility, or other disability, he has become incapable of performing his functions adequately. Courts no less than politicians can perceive that the integrity of the judicial process is best preserved by judges who can and will adequately serve the public interest. Should a convincing showing be made that in removing a judge the visitorial court was motivated by racial-religiouseconomic biases rather than a genuine need to cleanse the bench of a senile, corrupt or negligent placeman, that court may be reversed on appeal by the Supreme Court.162 And there remains impeachment, for oppression or abuse of power is a recognized impeachable offense, as Madison's statement in this very context further attests: "the wanton removal of meritorious officers would subject [the President] to impeachment and removal .

[ocr errors]

"163

III. IMPEACHMENT FOR "MISBEHAVIOR"

By a seemingly logical progression Congressman Ford has concluded that impeachment was designed to enforce "good behavior." Starting with "during good behaviour," he said, "it is implicit in this that when behaviour ceases to be good, the right to hold judicial office ceases also." So much is unexceptionable, as is his second step. "Naturally, there must be orderly procedure for determining whether or not a Federal judge's behaviour is good.' Consequently, he concludes, the Founding Fathers "vested this ultimate power in the Congress" in the "seldom-used procedure, called impeachment."164 Thereby he assumed the answer, an answer contradicted by history. But in justice to Congressman Ford, he was no breaking virgin soil; his view lurks in Rufus King's remark that impeachment wat the "forum established for trying misbehavior."165 The Framers, howevers went on to limit impeachment to the commission of "high crimes and misdemeanors, a standard of quite different origin and dimensions. The Ford-King view was given its most ringing affirmation by Judge Merrill Otis, in his heated defense of the "exclusivity" of impeachment. Confronted with the fact that "good behavior" might be an impotent provision if unenforceable, with the "hiatus" between "good behavior" and "high crimes and misdemeanors," Judge Otis

157 80 CONG. REC. 5934 (1936). See also note 195 infra.

158 See pp. 1514-17 infra.

159 Potts, supra note 148, at 31-36; Shartel, supra note 22, at 870-73. Impeachment, Professor Stolz concedes, "has a deservedly bad reputation." Stolz, supra note 8, at 660.

160 Chandler II, 398 U.S. at 155 (Douglas, J., dissenting). In 1937, Hatton Sumners stated, "I never heard it said until today that three judges of the circuit court of appeals trying a district judge might stultify themselves in order to convict an honest man and remove him from office." 81 CONG. REC. 6184 (1937).

161 It has been stated by President Kingman Brewster of Yale University that he was "skeptical of the ability of black revolutionaries to achieve fair trial anywhere in the United States." N. Y. Times, April 25, 1970, at col. 1.

162 It is open to Congress to provide for an appeal to the Supreme Court from a judgment by a special court for removal of judges. See generally pp. 1526-28 infra.

1631 ANNALS OF CONG., supra note 2, at 498; Berger, Festschrift, supra note 9.

164 116 CONG. REC. H3113 (daily ed. April 15, 1970).

165 P. 1498 supra.

boldly asserted that "a judge may be impeached for any misbehavior or misconduct which terminates his right to continue in office."166

At common law, tenure "during good behavior," as we have seen, was terminated by "misbehavior." The early law does not define "misbehavior" in so many words; rather it lays down the several grounds for forfeiture of an office; but these, a study of Bacon's Abridgment discloses, are interrelated if not equivalent and we are justified in concluding that the several grounds of forefeiture serve to identify the various forms of "misbehavior."167 For example it was held in the Earl of Pembroke's Case (1597) that "every voluntary act done by an officer contrary to that which belongs to his office is a forefeiture of his office. Coke specified three causes for "forfeiture or seizure of offices, as for abusing, not using or refusing." As abuse of office, he instanced an escape voluntarily suffered by a gaolor; non-use was exemplified by non-attendance when the office concerned the administration of justice.168 By 1716, Hawkins could state that

in the grant of every Office whatsoever, there is this Condition implied by Common Reason, that the Grantee ought to execute it diligently and faithfully.16

169

His view of the scope of forfeiture was broad indeed:

it would be endless to enumerate all the particular instances, wherein an officer may be discharged or fined; and it also seems needless to endeavour it because they are generally so obvious to Common Sense, as to need no Explication.

And he emphasized that forfeiture for neglect of duty was for the protection of the public, to make possible a replacement who would adequately perform the duties of the office.170

"Misdemean" and "misbehave" were sometimes interchangeable terms, but it does not follow that "misbehavior" was equated with "high misdemeanor." To "misdemean," states the Oxford English Dictionary, meant "To misbehave, misconduct one's self," and it cites a 1736 example, "Sir Luke Fitzgerald misdemeaned himself before the board by uncivil words." An appointment for so long as he "shall well demean himself" in his office was considered in Harcourt v. Fox (1692). Serjeant Levinz construed the statute to mean "during good behavior; and that is an estate for life, unless his misbehaviour in his office" made him removable for "misdemeanour." Chief Justice Holt was of this opinion, saying, "during life, and during good demeanour, are therefore synonymous phrases," and that the statute was designed to put the clerk “out of fear of losing [his office] for anything but his own misbehaviour in it."171

The interchangeability of "misbehavior" and "misdemeanor" for purposes of forfeiture of an office does not, however, prove that "misbehavior" and "high crimes and misdemeanors" are equivalents for purposes of impeachment. Rather, it illustrates the familiar fact that the same word may have different meanings in different contexts. 172 "High misdemeanors" was employed in impeachment proceedings long before there was such a crime as a "misdemeanor"; and impeachment was not based on "misdemeanors" but on "high misdemeanors," a quite

166 Otis, supra note 27, at 33.

167 Compare 3 M. BACON, supra note 20 at (H) 733 "Of the Nature of Offices as to their Duration and Continuance" with (M) 741, “Of the Forfeitures of an Office"; and 4 J. COMYNs, supra note 22, at (B 7) 242 with (K 2) 255, C,. 2 W. ANSON (Part I), supra note 38, at 235: "Misbehaviour appears to mean misconduct in the performance of official duties, refusal or deliberate neglect to attend to them.

[ocr errors]

168 Popham 116, 118, 79 Eng. Rep. 1223, 1224 (1597); Earl of Shrewsbury's Case, 9 Co. Rep. 46b, 50a, 77 Eng. Rep. 798, 804 (1611). See also Regina v. Ballivos (Serjeant Whitacre's Case) 2 Ld. Raym. 1232, 1237, 92 Eng. Rep. 313, 316 (1705); 16 C. VINER, supra note 23, at 121-24; 4 J. COмYNS, supra note 22, at 255; 3 M. BACON, supra note 20, at 741.

169 1 W. HAWKINS, supra note 142, ch. 66, § 1, at 167. 3 M. BACON, supra note 20, at 745, also states that "the particular Instances wherein a Man may be said to act contrary to the Duty of his office, tho various, are yet so generally obvious, that it seems needless to endeavour to enumerate them." Blackstone states, "if a grant be made to a man of an office, generally, without adding other words, the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office, on breach of which condition it is lawful for the grantor.. to oust him "2 W. BLACKSTONE, COMMENTARIES* 152.53.

170 1 W. HAWKINS, supra note 142, ch. 66, § 2, at 168, and § 1, at 167-68. Hawkins was to be found in Colonia lbraries. H. COLBOURN, supra note 3, at 204, 211, 223.

171 Harcourt v. Fox, 1 Show. K.B. 426, 510, 534, 536, 89 Eng. Rep. 680, 720, 721-22, 734, 736 (1692–1693). Cf. 1 W. & M., c. 21, § VI (1688): "if any Clerk of the peace. ... shall misdemean himself in the Execution of the said office, and thereupon a Complaint and Charge in Writing of such Misdemeanour shall be exhibited against him to the Justices [they may]. discharge him from the said office."

172 Lamar v. United States, 240 U.S. 60, 65 (1916) (per Holmes, J.); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932).

different breed of cat.173 And if I may be suffered to repeat, in no case, so far as I could find, was an impeachment grounded upon a breach of "good behavior"; in every case the charge was "high treason" and (in some cases or) "high crimes and misdemeanors."

Certain categories of "high crimes and misdemeanors" superficially may seem coterminous with "misbehavior," e.g., abuse of official power, neglect of duty. But a gap yawns between the "non-attendance" instanced by Coke as an example of "non-use" or neglect, and the neglect that was punished by impeachment, e.g., the neglect of an admiral to safeguard the seas 174 or of a Commissioner of the Navy adequately to prepare against a Dutch invasion.175 Moreover, the impeachable "neglect" and "abuse of office" comprehended in "high crimes and misdemeanors" was, in the view of the Founders, limited to "great offenders";176 impeachment of all petty officers was emphatically excluded. Maclaine's remarks in the North Carolina Ratification Convention are illustrative:

it was mentioned by one gentleman, that petty officers might be impeached. It appears to me. · · the most horrid ignorance to suppose that every officer, however trifling his office, is to be impeached for every petty offense. . . . I hope every gentleman . . . must see plainly that impeachments cannot extend to inferior officers of the United States.

That extension, he continued, would be "a departure from the usual and wellknown practice both in England and America";177 and in truth both the English and the Framers were almost entirely concerned with "great offenders," high Ministers and the President, and "great offenses." Is it conceivable that the President would be impeachable for "non-attendance"? The Rocords of the Convention furnish a conclusive answer. When the Convention took up "the trial of impeachments against the President, for Treason and bribery,' "Mason pointed out that this was too narrow, that it could not reach "attempts to subvert the Constitution," "great and dangerous offenses." Such was the origin of "high crimes and misdemeanors."'178

Congressman Ford recognizes that removal of the President "would indeed require crimes of the magnitude of treason and bribery," but concludes that "from our history of impeachments: a higher standard is expected of Federal judges than of any other 'civil officers' of the United States."179 It is the records of the several Conventions rather than the "guilty" or "not guilty" verdicts of the Senate 173 That "high crimes and misdemeanors" means "and high misdemeanors" may be gathered from Blackstone's statement that the principal "high misdemeanor" is "the maladministration of such high officers," "usually punished by the method of parliamentary impeachment." 4 W. BLACKSTONE, COMMENTARIES *121. In the impeachment of Chief Justice Scroggs, he was initially charged only with "high misdemeanors.' 8 HOWELL'S STATE TRIALS 163 (Cobbetts Collection 1809). For references to "high misdemeanor" in the Federal Convention, see 2 M. FARRAND, supra note 97, at 348, 443. Senator William Blount was expelled from the Senate in 1797 because of "a high misdemeanor, entirely inconsistent with his public trust and duty as a Senator.... ." F. WHARTON, supra note 54, at 202.

"High crimes and misdemeanors" is met in 1388 in the impeachment of the Earl of Suffolk, 1 HOWELL, supra note 173, at 90, 91, 101, 102. At that time there was no such general crime as a "misdemeanor"; lesser crimes were prosecuted as "trespasses" well into the 16th Century, and only then were "trespassers" replaced as a category of crimes by "misdemeanors." 3 W. HOLDSWORTH, supra note 28, at 318 n.1 (4th ed. 1935); 4 W. HOLDSWORTH, id. at 512-13 (1924); T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 459 (5th ed. 1956). This derivation from tort led J. STEPHEN, THE CRIMINAL LAW OF ENGLAND 60 (1863) to emphasize that "prosecutions for misdemeanor are to the Crown what actions for wrongs are to private persons." "High misdemeanors," on the other hand, were from the outset, and remained, "political crimes" against the state, e.g. Treason, bribery.

174 Impeachment of Duke of Buckingham, 2 HOWELL, supra note 173, at 1307, 1310, Art. IV (1626). 175 Impeachment of Peter Pett, 6 HOWELL, supra note 173, at 865, 867, Art. V (1668).

176 For the almost exclusive concern with the President, see note 108 supra; for "favorites" or officers sheltered by the President, see p. 1491 supra. Gouverneur Morris stated in the Convention that "certain great officers of State; a minister of finance, of war, or foreign affairs, etc. . . will be amenable by impeachment to the public justice." 2 M. FARRAND, supra note 97, at 53-54. In the North Carolina Ratification Convention, Iredell said, "The power of impeachment is given by this Constitution, to bring great offenders to punishment. . . the occasion for its exercise will arise from acts of great injury to the community 4 J. ELLIOT, supra note 15, at 113. And Governor Johnston said impeachment was designed to reach "men who were in very high offices. ." Id. at 37. In the Federal Convention, Mason said that the President as well as his coadjutors should be punished "when great crimes were committed." 2 M. FARRAND, supra note 97, at 65. Historically, said Lewis Mayers, 7 ENCYCLOPAEDIA OF THE SOCIAL SCIENCES 600 (1932), impeachment "has been reserved almost exclusively for high officers of state. Cf. 1 W. HOLDSWORTH,

supra note 28, at 380-82 (3d ed. 1922); 2 R. WOODDESON, LAWS OF ENGLAND 601 (1792) ("abuse of high offices of trust"). As Solicitor General, later Lord Chancellor, Somers said in 1691, "The power of impeachment ought to be, like Goliath's sword, kept in the temple, and not used but on great occasions." 5 NEW PARL. HIST. 678 (1691).

1774 J. ELLIOT, supra note 15, at 43-44. Maclaine: "no petty officer was ever impeachable," id. at 46; see id. at 37. Impeachment was devised to reach "the highest and most powerful offenders." 4 J. HAT SELL, supra note fi28, at 63.

178 2 M. FARRAND, supra note 97, at 550. Aee also pp. 1512-13 infra. The Founders' concern with "great offenses" is set forth in greater detail in Berger, Festschrift, supra note 9.

179 116 CONG. REC. H3114 (daily ed. April 15, 1970).

that constitute the index of Constitutional interpretation.180 Of a special concern that judges be held to "higher standards,' ," that is, be impeachable for lesser "high crimes and misdemeanors" than the President or other civil officers, there is not a trace. Instead of such a special concern there is a "legitimate textual question" whether the last minute, unexplained insertion of "other civil officers" in the Executive Article comprehends judges, who are the object of Article III.181 If the Framers intended to make judges impeachable for lesser crimes than the President and other civil officers, they chose a singularly inept way of articulating their intention, for they employed one and the same phrase, "high crimes and misdemeanors" for "President, Vice President and other civil officers" without naming judges at all, and without the slightest intimation that "high crimes and misdemeanors" was to have two different meanings, one for judges and one for the President and other civil officers. One who would give those words two entirely different meanings, turning on the person to whom they are applied, must demonstrate that such was the manifest intention of the Framers, a demonstration that has yet to be made. And since the "independence" of judges against legislative encroachments had been a particular object of the Founders' solicitude, it would indeed be anomalous if Congress, under the Ford construction, would have more freedom to impeach judges than "other civil officers," and this by resort to "good behavior" which was designed to afford special protection to judges.

There is yet another and weighty argument against the Otis-Ford extension of impeachment to departures from "good behavior." In adopting "high crimes and misdemeanors," the Framers departed from the provisions of the seven State constitutions that provided for impeachment, five of which made "maladministration" a ground for impeachment, while New York proceeded for "malconduct," and North Carolina for "misbehavior." 182 Plainly the wedding of "maladministration" and "misbehavior" to impeachment in the State Constitutions held no charms for the Framers. In fact, "maladministration" was rejected because, said Madison, "So vague a term will be equivalent to a tenure during pleasure of the Senate," and in its stead "high crimes and misdemeanors," borrowed from English, not State impeachment provisions was substituted by the Framers with knowledge that these were words of "limited," "technical meaning." 183 Against this background, how can we attribute to the Framers an intention to include in "high crimes and misdemeanors" impeachment for "misbehavior," a standard even more uncertain and indefinite than the discarded "maladministration"?18

180 Consider how close to inclusion in "our history of impeachment" was the shameful impeachment of President Andrew Johnson, "one of the most disgraceful episodes in our history." S. MORISON, supra note 89, at 721.

181 P. 1497 supra.

182 Maladministration: Delaware (1776) Art. 23, 1 B. POORE, supra note 103, at 276-77: North Carolina (1776) Art. 23, 2 id. at 1413: Pennsylvania (1776) Sec. 22, id. at 1545; Vermont (1777) Art. 20, id. at 1863; Virginia (1777), id. at 1912.

New York (1777) Art. 33, id. at 1337; New Jersey (1776) Art. 12, id. at 1312. The New York provisions, the prototype of the Article II separation of removal from subsequent indictment and criminal punishment, provided for impeachment for malconduct but "indictment for crimes and misdemeanors." Art. 34, id. at 1337. Like the other States, New York did not employ "high crimes and misdemeanors."

183 2 M. FARRAND, supra note 97, at 550. Earlier the Convention, in another context, had rejected "high misdemeanors" because it "had a technical meaning too limited," id. at 443. Hence we may conclude that the Framers adopted the phrase for purposes of impeachment precisely because it had that technical, limited meaning. It was this meaning which is to be given to the constitutional phrase, subject to the further limitation that impeachment was to be confined to "great offenses." P. 1511 supra. Berger, Festschrift, supra note 9.

I cannot therefore concur in Professor Kurland's statement that "the content of ['good behavior']" is "either (1) to be derived from the definition of high crimes and misdemeanors, or (2) to be left to the decision of the Senate when sitting as a court of impeachment," Kurland, supra note 8, at 697. The content of "good behavior" at common law had no association with "high crimes and misdemeanors." See pp. 1477, 1508-10 supra. Nor may the Senate exceed the "limits" contemplated by the Framers. Berger, Festschrift, supra note 9. 184 Nathan Dane concluded that "good behavior" and its "opposite uncertain and indefinite." 7 N. DANE, DIGEST OF AMERICAN LAW 366 (1824). A word about the "dilemma" with which Judge Otis sought to saddle proponents of the view that "good behavior" was enforceable by traditional means without regard to the provision for impeachment:

'misbehaviour,' were "equally

The proponents of the 'hiatus' theory are confronted with this dilemma: Either they must limit the jurisdiction of the court contemplated by THE SCHEME to those cases of alleged misbehavior for which, they say, impeachment will not lie, or they must say that the provision of the Constitution that "The House of Representatives shall have the sole power of impeachment' and its companion. "The Senate shall have the sole power to try all impeachments' are sufficiently complied with if exactly the same powers are vested elsewhere and called by different names.

Otis, supra note 27, at 33. His reference to "exactly the same powers" is in error because a forfeiture of office for misbehavior does not disqualify the officer ever to hold another federal office. Nor is removal for "misbehavior" a "different name" for "exactly the same powers" expressed in the impeachment provisions. Impeachment is confined to "high crimes and misdemeanors" and Parliament never confused the two. Otis overlooked what was perceived in the First Congress, that impeachment is a form of "supplemental security" in the event that the "executive" branch, and by the same token if the "judicial" branch, neglects to remove an unfit officer. P. 1491 supra.

To open up "high crimes and misdemeanors" for "misbehavior" would thwart the manifest purpose of the Framers to limit the scope of impeachments and to exclude "maladministration," and by the same token "misbehavior," which did not amount to "high crimes and misdemeanors."

There is, however, no evidence that the Framers intended to immunize judges whose misbehavior did not ascend to "high crimes and misdemeanors." Nor is there any evidence that they employed "good behavior" in other than its accepted sense a tenure terminated by misbehavior. Unless, therefore, we are to conclude that the Framers intended that judges whose tenure had been terminated by misbehavior were nevertheless to continue in office, there must be, as at common law, a means of effectuating the termination. And since impeachment cannot serve as the means, the argument for its exclusivity fails. Finally, "good behavior" was employed to guard against legislative and executive tampering with the judiciary, not to insulate judges from removal when they misbehaved. Judicial independence, in short, rises no higher than the "good behavior" tenure in which it is expressed. And the separation of powers only guarantees, it does not alter, the tenure secured by "good behavior"; much less does it exclude the judiciary from removing a judge who has misbehaved.

IV. TWO ARGUMENTS MADE FOR THE STATUS QUO

A. Professor Kurland

Those who would improve the removal process, Professor Kurland suggests, are overlooking the “essential problem”—the “process that has made federal judicial appointments prime patronage plums to be awarded by Senators in acknowledgement of party or personal loyalty." The cure, he states, is to entrust judicial functions "only to those who are equal to their demands." 185 This is the counsel of perfection, as he himself recognizes: "The basic difficulty is to secure recognition of the necessity for merit appointments. How this sense of responsibility is to be secured is a question that has not yet been answered. Nor is it realistic to expect such improvement" at this time. 186 No unanswerable problems are posed by the case for removal by judges on grounds of judicial "misbehavior"; and rejection of the exclusivist interpretation is therefore preferable to reliance upon a Utopian appointment process.

Another Kurland objection is that there is an "absence of a weighty demonstration of the need for legislation providing for removal of federal judges by means other than impeachment-a case that has not been made and, I think, cannot be made." 187 If this be so, the protracted controversy about the exclusivity of impeachment has indeed been much ado about nothing. True, in the 182 years adoption of the Constitution only nine judges have been impeached and only four convicted and removed. That, however, does not tell the whole story. Of the fifty-five judges who were investigated by the House,

eight [and one Justice] were impeached, eight were censured but not impeached, seventeen others resigned at one stage or another in the conduct of the investigation, while the rest were absolved of impeachable misconduct. Added to this are the undetermined number of judges who resigned upon the mere threat of inquiry; for them there are no adequate records.188

This was after sifting "the hundreds of complaints that have been registered" over the years.189 That the adequacy of the sifting leaves something to be desired is revealed by the House's own records. To cite only a few instances involving district judges for whom a Committee of the House recommended impeachment but where the House took no action: Aleck Borman, used court money; Philip K. Lawrence, corrupt, malicious and dangerous abuses, intemperate use of ardent spirits.190

185 Kurland, supra note 8, at 666.

186 Id. at 667. There is at least a doubt whether any appointment process would screen out the corrupt judge. J. BORKIN, supra note 1, at 11, concludes, "Nor is there a discernible type of corrupt judge. A study of thirty-two of the Federal judges against whom there was a considerable body of adverse evidence and who were subjects of Congressional investigation, impeachment proceedings, or criminal action indicates that they were recruited from the most diverse of environments. . . . Many were honor graduates and became trustees of universities; one was an authority on Oriental languages: another was the brother of one of America's most distinguished historians; one entered politics as a reform candidate; and another was the daily associate of gangsters and 'ward' politicians."

167 Kurland, supra note 8, at 697.

189 J. BORKIN, supra note 1, at 204 (emphasis added). For list of convictions, acquittals, investigations, see id. at 219-58. See also 80 CONG. REG. 5934 (1936), 81 CONG. REG. 6175, 6178 (1937).

189 81 CONG. REC. 6178 (1937) (statement by Congressman Hobbs).

190 J BORKIN, supra note 1, at 224, 237.

« PreviousContinue »